Definition of Sexual Assault:
An assault within any one of the definitions of that concept from the CC that is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.
Test to be Applied:
Objective – viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer? All circumstances surrounding the conduct are relevant to the issue of whether the conduct was of a sexual nature and violated the complainants sexual history.
R. v. Ewanchuk (1999) SCC
A 17 year-old girl met E at his mobile home to discuss a job offer. E made increasingly serious sexual advances on the complainant but stopped each time she said no. She gave him a massage and accepted $100 from him; however, her compliance was said to be out of fear. The SCC rejected the defense of implied consent upon which he was acquitted on twice before in favour of the “no means no” policy. The SCC determined that implied consent is not a defense for sexual assault in Canada. Major J. stated that to secure a conviction of sexual assault, it must be established that:
1. The accused committed the actus reus (unwanted sexual touching)
a. Touching – objectively determined
b. sexual nature of the contact – objectively determined
c. absence of consent – subjectively determined (determined by reference to the complainant’s subjective internal state of mind towards the touching at the time it occurred).
2. The accused had the necessary mens rea (intention to touch knowing of, being reckless toward or willfully blind to a lack of consent either through words or actions of the person being touched).
Sexual assault only becomes a crime in the absence of consent. Once unwillingness is expressed, the accused should make certain that she truly has changed her mind before proceeding with further intimacies. L’Heureux-Dube commented that McClung’s remarks were uncalled for regarding “bonnet and crinolines” and added that it was not necessary to comment that the victim had a baby and was unmarried but living with her boyfriend.
R. v. Davis (1999) SCC
Followed Ewanchuk. The actus reus of a sexual assault requires touching of a sexual nature without the consent of the complainant. Roach says the SCC is concerned with maximizing the power of women in rape cases. For mistaken belief to be considered:
1. The complainant could not have consented to the sexual touching
2. The accused must have honestly but mistakenly believed the complainant consented (couldn’t have proceeded with recklessness or willful blindness).
MISTAKEN BELIEF DEFENSE
In Ewanchuk Major accepts Dickson’s analysis that the mistaken belief defense is simply a denial of mens rea. There is no persuasive burden of proof on the accused. They simply must establish/meet the evidential burden with an air of reality. In addition, this case established that consent must be obtained by an affirmation by the complainant by words or conduct. The mistaken belief defense cannot be used where the mistake of belief derived from:
1. Self-induced intoxication
2. Recklessness or willful blindness
3. Where reasonable steps were not taken in the circumstances to ascertain that the complainant was consenting
Pappajohn v. R. (1980) SCC
This appeal was based on the accused’s claim that the trial judge erred in failing to instruct the jury regarding the defense of honest but mistaken belief in consent. The court would not consider the possibility of an honest but mistaken belief in consent, concluding that the only options that existed were either consent or non consent. The accused must show that they believed the complainant communicated consent to the acts in question. Mere speculation, silence, passivity or ambiguous conduct on the part of the complainant provides no defense. The question to be asked in determining whether mens rea existed is whether the accused believed that they obtained consent. If an honest but mistaken belief exists in the mind of the accused – no mens rea. This is subject to a reasonableness standard. In dissent, Dickson pointed to numerous pieces of circumstantial evidence that could be used to raise the defense of mistaken belief (folded clothing, no physical injuries, she never attempted to leave, etc.)
The mistaken belief defense was allowed in D.P.P., a case involving a man who brought 3 friends home from the pub to have sex with his wife. He prefaced this invitation by informing them that she often put on a show of struggling during intercourse to elevate her excitement. It was allowed because there was evidence in place to support it.
Air of Reality Test:
This was the most important part of the evidentiary ruling in Pappajohn. McIntyre stated that the mistaken belief defense did not arise on the evidence because it had no air of reality. He held that the trial judge was correct in choosing not to leave this defense to the jury. The air of reality test is designed to restrict the mistaken belief defense. As stated by McIntyre, evidence from other someone other than the accused is needed but Cory rejected this approach; however, he agreed with McIntyre that the accused merely stating “I believed she consented” is not good enough either – must be supported by evidence beyond a mere assertion. Osolin established that the air of reality test did not violate 11d or 11f (right to trial by jury).
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